From Roe v. Wade was overthrown in June 2022there was much anxiety and speculation as to what rights would be taken away next. Will they come after our birth control? LGBTQ+ rights? Interracial marriage? One thing we knew for sure that would ultimately be adversely affected by the SCOTUS’s blatant decision to leave the right to a safe abortion up to the states was in vitro fertilization (IVF)and nearly two years into the SCOTUS administration, we’re already starting to see it unfold.
To learn a little more about the current state of IVF in the United States, we spoke with Mark Trolice, MD, FACOG, FACS, FACEits founder IVF center and its medical director Everieand Evie Jeanglicensed attorney and surrogacy expert.
The infamous Alabama case
The first thing you need to know is that there are currently no laws at the federal or state level that directly attack a person’s right to IVF treatment, and SCOTUS’s overturning of Roe v. Wade was intended to attack on abortion rights.
“Until any law outright bans or restricts IVF, patients deserve the treatment that is most effective in overcoming their family-building challenge,” explains Dr. Trolice.
However, we are beginning to see the unintended consequences of anti-abortion laws and rulings affecting IVF. The most recent and widely known was in Alabama in February 2024. This case was brought by patients of a fertility clinic whose embryos were accidentally destroyed due to improper handling by a fertility clinic worker. An embryo is the initial stage of embryonic development when a sperm has fertilized an egg, but in the case of IVF patients, this process happens in the laboratory and the embryo is later implanted in the birth parent’s uterus when it is ready to become pregnant . (To learn more about the ins and outs of IVF, see our part One and part two explainers.)
The patients argued that this should be considered a “wrongful death of a minor” under an existing Alabama law. Eventually, the case reached the state Supreme Court, where the justice ruled in favor of the patients, stating that, under a law written in 1872, Embryos created by IVF are considered children— even when not implanted.
The Ripple Effect
Someone undergoing IVF treatment is most likely doing so because they are struggling with infertility. In many cases, these patients may have experienced tremendous frustration, pregnancy loss, and trauma just trying to conceive. Realizing this, we can all sympathize with the patients in this trial, because they likely went through many painful treatments to get these embryos (not to mention the financial costs they may incur), so they have to lose them through no fault of their own. . it was devastating.
However, this decision suddenly became a much bigger deal because Alabama has a total abortion ban (with few exceptions). Considering unimplanted fetal children, any embryo discarded or destroyed for any reason—even with the patient’s consent—would amount to an abortion.
This is where it gets really complicated and messy because an unimplanted embryo is not an embryo and cannot be aborted, period. When a patient undergoes IVF treatment, a doctor will collect eggs from a patient’s ovaries and fertilize them with sperm in a laboratory, creating embryos. These embryos are then transferred to a uterus, discarded or frozen for later use. Embryos that do not implant are not pregnancies, nor are they viable outside the womb. One abortion is defined as “termination of a pregnancy accompanied by, resulting in, or following the death of the fetus”.
However, because of this ruling, many fertility clinics in the state have suspended treatments as they sought legal counsel to ensure the protection of their staff and patients. However, since Alabama is not the only state with strict abortion lawspractices across the country worry they may suffer a similar fate.
“In response to the controversial Alabama embryo decision, some out-of-state IVF clinics have also ceased operations due to the continued impact of legal uncertainty and potential risks,” says Jeang. He further explains, “Concerns about the legal classification of embryos now affect various aspects of IVF work, such as the creation, storage and disposal of embryos.”
Of course, this (understandable) act of self-protection by the clinics puts patients in a bind. Since the different stages of IVF treatment require such careful timing, even a short pause can have long-term consequences for someone hoping to conceive a child this way.
This doesn’t sit well with Dr. Trolice. “Unless there is a final decision that will prevent the IVF process, e.g. freezing and thawing of embryos, I believe it is premature to stop the much-needed treatment for infertility patients… Infertility is a disease that affects 1 in 5 couples facing start a family. It is unfair to further delay these couples in the journey for a child.”
Ensuring access to IVF treatment
When asked what can be done to protect our right to IVF treatment, Jeang reminds us of the importance of information. “If we continue to ignore laws that limit these rights, reproductive freedoms risk regressing instead of advancing.”
Fortunately, the clinics and dispensaries that have gone out of business since the Alabama decision are in the minority. Even in Alabama, most dispensaries are on standby and working after hours The Governor signed a new law that protects IVF patients and providers ahead of the February 2024 decision. However, it’s unlikely we won’t see more barriers to access across the country in one way or another, given the continued attacks on reproductive rights since the reversal of Roe.
As an IVF patient, don’t be afraid to research or ask what your provider believes and supports IVF and reproductive rights. “All infertility specialists should support her American Society for Reproductive Medicine and DECIDE—the National Infertility Association—in relentlessly advocating for a woman’s right to reproductive health care by meeting with legislatures, using social media and contributing publications to raise awareness of this vital issue,” says Dr. Trolice.
Even if you’re not an IVF patient, you can help fight for our reproductive rights and access to basic health care, like IVF treatment. “Unity is so important when it comes to fighting restrictive laws and protecting IVF and abortion regulations,” says Jeang. “Communicating directly with lawmakers through phone calls, letters and in-person meetings, as well as supporting political candidates who stand up for reproductive rights, is critical.”
